January 2011 Archives

Employers should be aware that the National Labor Relations Board (NLRB) has proposed a new regulation that would require employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). The NLRB has provided a fact sheet that answers some basic questions about the proposed regulation. Under the Notice of Proposed Rulemaking, which was issued on December 22, 2010, employers would be required to post a notice that included information on employees’ rights under the NLRA, and conduct by employers and unions that is illegal under the NLRA.

Employers would be required to post the notice everywhere that they normally post such information, such as EEOC and OSHA notices of employee rights. If an employer normally notifies is employees via a company intranet, Internet, or email, it would be required to use the same methods to disseminate the NLRB notice.

The notice would also have to be posted in the languages an employer’s employees speak. There is no guidance on how this requirement will be applied, but if a substantial number of an employer’s employees speak a particular language, it would likely be required to post in that language.

If an employer fails to post the notice, it may be subject to several penalties, including a cease and desist notice, a tolling of the statute of limitations for any unfair labor practice charges, or a presumption that the employer’s failure to post is evidence of anti-union animus.

The posting proposed by the NLRB is modeled on a notice already required by the Department of Labor for all federal contractors.

So, what can employers do to impact the contents of the proposed regulation? Well, the comment period on the proposed rule does not expire until February 20, 2011. Until that time, anyone is free to submit comments to the NLRB in support of, or in opposition to, the new regulation. In addition, employers can contact their congresspersons. Particular attention should be paid to the members of the House Appropriations Committee and the Subcommittee on Labor, which oversees funding to the NLRB.

A bill to permit the use of marijuana for medical purposes was introduced in the Delaware General Assembly yesterday. Senate Bill 17, if enacted, would create an exception to Delaware’s criminal laws by permitting the doctor-recommended medical use of marijuana by patients with serious medical conditions. A patient would be protected from arrest if his or her physician certifies, in writing, that the patient has a specified debilitating medical condition and that the patient would receive therapeutic benefit from medical marijuana.

Patients would be allowed to possess up to 6 ounces for their medical use. The legislation allows them to designate a caregiver who would also receive an ID card. Each caregiver may assist no more than five qualifying patients. The legislation would also allow for the state-regulated, non-profit distribution of medical marijuana. The Department of Health and Social Services would issue registration certificates to qualified applicants.

SB 17 also contains restrictions on the medical use of marijuana, including prohibitions on public use of marijuana and driving under the influence of marijuana.

While the bill states that employers are not required to allow patients to be impaired at work or to allow the possession of marijuana at a workplace, it does not address how employers are to deal with employees who test positive for marijuana or ask for accommodations under the ADA.

Other States' Laws

Delaware joins a growing list of States proposing or enacting medical marijuana laws. Last year alone, about 12 additional states considered legislation or ballot initiatives that would legalize medical marijuana

Some states have already enacted legislation. Earlier this year, New Jersey and the District of Columbia signed medical marijuana legislation into law. Two additional states, though not specifically legalizing medical marijuana, have passed laws that are favorable to its use. Maryland recognizes medical use as a defense in court, while Arizona allows doctors allows doctors to prescribe marijuana (though federal law prohibits doctors from doing so).

Other Legal Issues, From ADA Accommodation to Safety

Legal questions are sure to arise regarding whether employers need to make accommodations under the Americans with Disabilities Act (ADA) for employees who use medical marijuana, either on or off the job, to treat disabilities caused by their medical conditions. At least one state supreme court has ruled that employers don't need to make such accommodations. Because the ADA doesn't require accommodations that would create a threat to employee safety or unreasonable risk of harm, some employers could argue that accommodating an employee who tests positive for marijuana use or allowing such use in the workplace creates a dangerous environment.

Speaking of dangerous environments, an added concern for employers of medical marijuana patients is workplace safety. Employers must still meet Occupational Safety and Health Administration and other federal regulations for safety, especially when employees perform potentially dangerous jobs such as operating heavy equipment, machinery, or motor vehicles as part of their job duties.

In an all too rare unanimous ruling (save for Justice Kagan, who recused herself), the U.S. Supreme Court has held that the anti-retaliation provision of Title VII extends to employees who are in the “zone of interest” with an employee who has filed a charge of discrimination. The facts and findings follow.

A female employee filed a charge of sex discrimination against her employer. A few weeks later, the employer fired the complainant's fiancee, who had also been a company employee. The fiance then filed a retaliation charge with the EEOC and a subsequent lawsuit.

Justice Scalia, writing for the Court, held that a reprisal against a third party such as the fiancee was covered retaliation under Title VII. The Supreme Court further held that the fiancee was an “aggrieved person,” who had standing to sue under Title VII. Justice Scalia pointed out that the text of the anti-retaliation provision is broader than the substantive provision and that any person who comes within the “zone of interest” that the statute seeks to protect can file suit. The Court leaves it to future cases to determine how far this “zone of interest” extends. The case is Thompson v. North American Stainless, No. 09-291.

Many employment lawyers advise their clients to adopt an effective social-media policy. But there are other lawyers who have demonstrated the need for such policies not by advising clients but by example. When lawyers cause problems for their employers by the lawyer’s use of social media, their employers get a far clearer understanding of the need for social-media policies. A recent example comes from the international law firm, Akin Gump, and one of its partners, Paul Mirengoff.

In his off-duty capacity, Mr. Mirengoff posted on a conservative blog called Power Line. The post at issue discussed the good, the bad, and the ugly of President Obama’s speech following the recent Arizona shootings. Among the “bad” that Mirengoff discussed was a Native American prayer recited before President Obama gave his remarks. Mirengoff complained that the prayer included many references to the Creator, but none to God. He then opined that a Christian prayer should have been read, because many of the victims were devout Christians.

Mr. Mirengoff’s post was not well received by his employer, which has a well-developed practice in the area of Native American law. The firm’s managing partner issued a statement distancing the firm from the post, and noting that the firm has no affiliation with the blog itself. The firm is also reported to have requested that the post be removed, which it was. (The post can be accessed on the ABA Journal’s website here). That statement was included within a larger statement by James Maggesto, another partner at Akin Gump, who is of Native American descent and who practices in the firm’s American Indian Law and Policy section.

This case is a helpful reminder that every business should have a strong social media policy in place. Even the best-informed employees can make mistakes. And those mistakes can do serious harm to a business’s bottom line.

An appeals court in California recently decided that emails sent by an employee from her work email address to her attorney are not protected by the attorney-client privilege. In the case of Holmes v. Petrovich Development Company, LLC, an employee sued her employer for wrongful termination. Prior to filing her lawsuit, she had exchanged emails with her attorney, using her office email account. The employer used the emails in its defense, and the employee objected, claiming that they were protected by attorney-client privilege.

The Court disagreed and found that the emails were not protected by the privilege. The court relied on the fact that the employer’s handbook expressly stated that an employee’s emails might be monitored. Such a warning, the Court concluded, made the employee’s emails akin a conversation held in the company’s conference room, with the door open, speaking in a loud voice. The California Court’s decision is in keeping with the Supreme Court’s 2010 decision in City of Ontario v. Quon, in which the Court held that an employee did not have an expectation of privacy in his text messages, sent using an employer-provided pager. This case, however, takes Quon to its logical conclusion, holding that in the absence of a reasonable expectation of privacy, the attorney-client privilege cannot attach.

As Delaware employers should know, they are required by statute to inform employees prior to monitoring an employee’s telephone, email, or internet use. 19 Del. C. § 705. Thus, under the California Court’s logic, any Delaware employee who has received notice of email monitoring under Delaware law has waived the attorney-client privilege as to any emails exchanged with the employee’s attorney, using his or her work email account. It is important to remember that the Delaware courts have not ruled on the issue of attorney-client privilege for work emails. However, this case is a valuable reminder that electronic communications are rarely as private as they appear, and we should all conduct ourselves accordingly.

The Third Circuit Court of Appeals (which covers Delaware) recently issued a reassuring decision for employers. In the case, the Court affirmed dismissal of racial discrimination and retaliation claims where there were no overt racial statements made by supervisors and the employer addressed all allegations promptly and in a manner reasonably calculated to prevent further harassment.

Facts of the Case

Janeka Peace-Wickham, who was African-American, was hired as a manager in the Café at the Delaware Memorial Bridge facility of the Delaware River and Bay Authority (DRBA). Her position was that of a "working supervisor" and she was expected to fill in as needed with cooking, cashiering, and serving. Shortly after she began employment, she got into a heated argument with a Caucasian co-worker, which resulted in both of them filing claims of racial harassment against the other. Peace alleged that some of the Café customers (primarily DRBA employees) made racially inappropriate remarks. She claimed to overhear one customer remark to another when she was not happy the way her meal was prepared, "back in the day, down South, blacks would have been hung for things like this."

Another customer remarked to Peace that the Café had "changed" since Peace's arrival, and Peace took this to be motivated by racial animus because the previous supervisor was caucasian. Peace also alleged that a customer had balled up receipts and thrown them at her. Following the departure of the Café Supervisor, who was also African-American, someone posted a sign at the Café which said "Free At Last , Free At Last, Thank God Almighty, Free at Last," which Peace took to be directed at her because she was the only African-American employed at the Café at that time.

Served up with a healthy dose of complaints

A mere three months into her employment, Peace complained of harassment from the Caucasian co-worker, and things only got worse from there. She routinely complained of understaffing in the Café and about how she was treated by customers as well as fellow employees in the Café. By the time she was done she'd filed numerous internal complaints, two charges of discrimination with the Delaware Department of Labor, and claimed that her rejection for a promotion was the result of her race and the fact she'd filed charges.

The Proof is In the Pudding, or Remedial Measures

The Court ruled that the DRBA was not liable for discrimination or retaliation. It noted that the record was devoid of any overtly discriminatory statements or conduct by her supervisors. While such conduct was not required to show intentional discrimination, the presence or absence of such conduct proves helpful in determining the motives of the decisionmakers. Here, the Court said the fact that Peace could not point to any overtly discriminatory conduct on the part of her supervisors lent further support to the conclusion that supervisors could not be held directly responsible for any hostile environment that may have existed.

Most importantly, however, the Court found that the DRBA took appropriate remedial steps in response to allegations of discrimination once it became aware of them. In response to Peace's complaints that it took to long to investigate and conclude her initial harassment claim, the DRBA revised its investigation procedures. It also posted anti-harassment signs and instituted diversity and harassment training for all employees. While the DRBA did take longer to investigate Peace's complaint than her co-worker's, it addressed the issue immediately by separating the two employees. The Court held that these measures fell "comfortably within the realm of legally adequate legal measures."

The Court further stated that it was "unwilling to step into the shoes of DRBA management, as suggested by Peace-Wickham, and make highly particularized judgments as to whether the DRBA should have docked pay, demoted, or withdrawn certain fringe benefits instead of following the course of action chosen here."

Bottom Line

Employers can take comfort that as long as it takes steps "reasonably calculated to end the harassment" once it becomes aware of allegations, it will not be liable for a hostile work environment. Diversity and harassment training, in particular, were compelling to the Court in this case.

Is it legal to fire an employee for things he posts on his Facebook page? That's the most common question that I am asked by employers in the context of social media. And no wonder; the stories of employees who disclose confidential company information, rant about coworkers or customers, and disparage supervisors make news headlines more often than I can post about them. Although the general answer is that an employer can terminate an employee for his or her Facebook posting, there are exceptions to that general rule. And the NLRB recently called this general answer into question when it filed a complaint against an employer who, the NLRB claims, enforced an overly broad social-media policy by unlawfully terminating an employee for her Facebook posts, thereby violating the National Labor Relations Act.

But a recent story from Pittsburgh, Pennsylvania gives employers yet another reason to worry. As reported by the Pittsburgh Tribune-Review, one small-business owner may have pushed the ball across the line from the other side when she (allegedly) made comments on her Facebook page targeting an employee who'd complained that she'd been harassed by her supervisor.

A former waitress at the tavern claims that she complained to Human Resources that a supervisor had made an inappropriate sexual comment to her. A week later, she claims, she read comments on the tavern owner's Facebook page that the employee believes were targeted at her. The waitress quit the next day and shortly thereafter, filed suit. The alleged comment did not mention the waitress by name: "Why do people think and believe it is OK to lie and hurt people that have never hurt or lied to them!" The employee felt that this comment and the reactions of coworkers were also directed towards her.

So, what are the take-aways for employers? There are several.

First, get an effective social-media policy. Yes, I know, I've said it before. But when I hear a story like this, I can't help but repeat myself. Not only should employers have policies that address what is and is not appropriate use of social-networking sites such as Facebook. But it's not enough to simply have a policy--employees and supervisors (and, in this case, owners) need to be trained on the policy and should be well informed of the potential problems that poor online judgment can cause. (SeeSample Social-Media Policy pdf).

Third, this story is an excellent reminder about the critically important role of Human Resources when an employee makes a complaint of inappropriate conduct in the workplace. This role cannot be overestimated. Whenever an employee makes a complaint about what he or she believes is discriminatory or harassing behavior at work--especially by a supervisor--HR must jump into action by promptly launching a thorough investigation and then taking effective corrective action.

Yesterday, I spoke to Delaware and Pennsylvania employers and HR professionals about documentation and record-retention issues. Two of the most popular topics were I-9 compliance and electronic or paperless recordkeeping. I mentioned to attendees a new publication that addresses both topics.

U.S. Citizenship and Immigration Services' new Handbook for Employers (pdf) is a document that anyone with I-9 responsibility should download. The Handbook is a comprehensive 69-page guidebook to I-9 compliance. Among the many topics discussed in detail is electronic maintenance of I-9 files.

Here's USCIS's answer to the question, "Can I throw away the paper I-9 once it's been scanned and saved electronically":

You may choose to fill out a paper Form I-9 and scan and upload the original signed form to retain it electronically. Once you have securely stored Form I-9 in electronic format, you may destroy the original paper Form I-9.

And what about if you want to adopt a completely paperless system with electronic, as opposed to traditional, signatures? Here's what USCIS has to say on the issue:

If you complete Forms I-9 electronically using an electronic signature, your system for capturing electronic signatures must allow signatories to acknowledge that they read the attestation and attach the electronic signature to an electronically completed Form I-9. The system must also:

1. Affix the electronic signature at the time of the transaction;

2. Create and preserve a record verifying the identity of the person producing the signature; and

3. Upon request of the employee, provide a printed confirmation of the transaction to the person providing the signature.

Employers who complete Forms I-9 electronically must attest to the required information in Section 2 of Form I-9. The system used to capture the electronic signature should include a method to acknowledge that the attestation to be signed has been read by the signatory.

For employers and human-resource professionals who have been considering making the switch to a paperless or digital system for HR records, this guidance from USCIS should eliminate any concerns when it comes to I-9 compliance.

It should come as a surprise to no one that the recently-released charge statistics from the EEOC reveal a record-breaking number of charges of discrimination filed against employers in 2010. The continued bleak economy and resulting layoffs in 2009 and 2010 are the most obvious reasons for the increased charges.

The EEOC Chair has attributed the rise to other factors as well, including EEOC outreach efforts and changes in the ADA law. Disability discrimination claims did take a bigger piece of the pie last year, rising from 23% of all claims filed in 2009, to 25.2% of all claims filed in 2010.

Some other observations from the statistics:

There has been a lot of discussion/speculation that older Americans were hit worst by the layoffs. It is interesting that, while the overall number of age discrimination charges rose slightly, the percentage of the total number of charges that were based on age discrimination actually decreased from 2009 to 2010, from 24.4% to 23.3% of all charges filed.

The brand new Genetic Information Nondiscrimination Act (GINA), which went into effect at the end of 2009, resulted in 201 charges filed. I expect that the regulations, which were released at the very end of 2010, and continued publicity and awareness of the law, will result in significantly more charges filed in this area in 2011.

Retaliation claims (which can be based on exercising one's right under any of the protected categories) for the first time surged past race discrimination claims, which were previously the highest percentage of charges filed. In 2010, retaliation claims accounted for 36.3% of all charges filed, and race charges 35.9%. At the Delaware Department of Labor, charges filed based on retaliation have exceeded other types of charges substantially for some time. See 2009 Stats on Delaware Charges of Discrimination; and What the Charge Statistics Mean for Delaware Employers.

Looks like Delaware was ahead of the curve on this one. They don't call us the First State for nothing!

What does all this mean for employers? Brace yourselves. Charges filed in 2010 may well lead to lawsuits in 2011. Unfortunately, the time from termination to lawsuit can be a lengthy one. Although the economy may be on its way to recovery in 2011, employers may just be starting to see the lawsuits resulting from layoffs several years ago.

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